2. If the franchise relationship were improperly
terminated, Brach is liable for the rent he would
have been charged as a franchisee.
Regardless of which theory governs, there is no factual
dispute that defeats Amoco's entitlement as a matter of law to
the same accrued amount: the difference between (1) the rent
Amoco would have charged any franchisee (at the facility in
question) under the Program since the supposed May 31, 1980
termination date and (2) the rent actually paid by Brach.
Under Illinois common law an individual "who, after
rightfully being in possession of rented premises, continues
in possession after his right to such possession has
terminated" is a tenant at sufferance (24 I.L.P. Landlord and
Tenant § 68, at 197 (1980)). At the sole option of the
landlord, a tenant at sufferance may be evicted as a trespasser
or treated as a holdover tenant bound by the terms of the
expired lease and any amendment unilaterally imposed by the
landlord so long as advance notice is given (id. §§ 127, 128,
at 231-33). But once the landlord has exercised that option it
may not alter its election (id. § 129, at 234). When Brach
remained in possession after the original May 1, 1978
expiration date, he became a tenant at sufferance. However, as
both Judge Flaum and the Court of Appeals (677 F.2d at 1218)
found,*fn4 Amoco continued to accept Brach's monthly rental
payments, creating a month-to-month holdover tenancy. And that
tenancy concededly was not terminated before May 31, 1980.
During that period Amoco never unilaterally raised the rent, as
was its prerogative, by providing 30 days' advance notice.
Consequently before May 31, 1980 Brach incurred no liability
over and above the rent payments he was making.
Under the Counterclaim's first alternative theory, Brach
again became a tenant at sufferance after that asserted
termination date. This time Amoco opted to treat Brach as a
trespasser*fn5 rather than a holdover tenant.*fn6 Under
those circumstances, Amoco would be entitled to any damages
resulting from Brach's wrongful possession. Such damages
include recovery for any rental income Amoco could have
obtained during the post-termination period — an amount based
on the then-prevailing market rental rate.
Fair market rental is of course a fact question. On that
score Amoco has made, as its showing, proof of the rental
rates it would have charged under the Program. Those rent
levels are at least prima facie evidence of market rentals
(see Murphy, at 913), particularly in view of the uniform
acceptance of the Program (and its nondiscriminatory rent
formula) by Amoco dealers across the country. And given Brach's
failure to proffer any other evidence on the issue, the Program
evidence is dispositive in Rule 56 terms.
Amoco's second alternative theory leads to the identical
conclusion. As Amoco's Hough Aff. ¶ 4 conclusively shows, Amoco
would have increased Brach's rent in accordance with the
Program had its franchise relationship with Brach not been
Amoco's failure to alter Brach's rental obligations since the
May 31, 1980 termination date stemmed from its good faith and
reasonable belief such action would compromise the position it
had taken in this proceeding — that Brach continues to occupy
the premises as a trespasser, not as a holdover tenant.*fn7
Moreover Amoco's inaction could not have unfairly prejudiced
Brach, for the Program's applicability to Brach is simply one
aspect of the franchise relationship, the preservation of which
is the very objective of his lawsuit.*fn8 Indeed barring Amoco
from back rent recovery (if the franchise relationship is found
to be still in force) would unjustly enrich Brach, allowing him
to exploit the rights of a franchisee while escaping the
In sum, the numbers are the same under either theory of
recovery — though the rationale may differ. Amoco is entitled
to an amount equal to the full rent it would have charged Brach
(or a new franchisee at the facility) under the Program
beginning June 1, 1980. Amoco's uncontroverted Hough Aff. ¶ 4
sets forth the computational basis for Brach's back rent
liability through June 1983:
1. Had the decision to base Brach's (or the new
franchisee's) rent in the Program's formula been
made May 31, 1980, he would have been cycled into
the Program in November 1980.
2. Brach's Program rent during the period from
November 1980 through June 1983 would have
3. During that period Brach's actual rent
payments were $10,081.85.
Accordingly Brach is liable for (1) $25,627.15 ($35,704 minus
$10,081.85) plus (2) the difference between the rent due under
the Program from July 1, 1983 to the present time and the
actual rent remitted by Brach during that period.